The principle of self-determination in international law is a concept that is continually evolving since the beginning of the 19th century when it entered the agenda of the international community. It has continued its evolution during the De-colonization and Post-Cold war era. Now it is undergoing a new phase of evolution through the Arab spring and the Syrian Civil War. This study aims to examine the effects of the Syrian civil war in that evolution and discuss the right to self-determination for Syrian people. Kosova case is also discussed in this study because of its uniqueness as a self-determination case study. In comparison with Kosova and previous cases, Syria case symbolizes another phase in the evolution of the right to self-determination. For the first time, the internal dimension of the self-determination principle is affecting a conflict in a sovereign state which is not under foreign invasion. Moreover, third party states are actively intervening in the domestic conflict because of the massive human rights violations which are perceived as violation of the right to internal self-determination. Thus, self-determination principle has evolved to a level that may swallow the norms of international law such as territorial integrity and non-interference in domestic affairs.
The principle of self-determination has been at the top of the most debated concepts by the international community since the beginning of the twentieth century because of its decisive role in the dissolution or unification process of many states. It had been the main driving force in the process of participation of new states to the international community during the Decolonization Era and after the collapse of the Eastern Block. Today it is still being claimed by many ethnic, religious, cultural and indigenous groups as the prominent international law norm in their struggle for independence or autonomy. Each claim has contributed to the evolution of the principle in the history, and it is still evolving. In recent years, self-determination claims related with Syrian Civil War has settled in the center of the discussions and has started to evolve the principle in a further phase.
Since 2011, the Syrian civil war claimed the lives of over 400,000 men, women, and children, with millions of others wounded, more than 5 million have fled the country, and over 6 million have been internally displaced (HRW World Report 2018-Syria). With these terrifying numbers, the Syrian civil war has already taken its place as a great tragedy in the history of humankind. Furthermore, it has evolved to one of the most challenging international problems of modern history with the participation of several countries siding on different parties of civil war and trying to realize own national interests in the Middle East. Because of the international character of the Syria conflict, it has already become a problem that should be resolved according to the international law (Salako, 2013). At this point, it is quite confusing because nearly all the internal (e.g., Syrian government, NCS, SDF) and external (e.g., USA, RF, EU) actors are claiming legitimacy of their demands according to international law. National Council of Syria and other opposition forces are claiming their right to internal self-determination against the oppressive Syrian government. The international actors like EU, USA and Gulf Cooperation Countries are supporting the opposition forces because of the massive human rights violation in Syria which is against the international law. On the other side, Syria Government is requesting from the international community to resolve the conflict according to the international law rules of “territorial integrity and non-interference in domestic affairs.” The countries like Russia and Iran are claiming their support to the Syrian government as legitimate because of the customary rules in international law which allows third party states to support a legitimate government at war. So, how should the conflict between all the actors be resolved according to international law which aims to maintain international peace and security (UN Charter, Article 1/1)? Is the Syrian Civil War signifying a turning point in international law regarding the self-determination principle?
This study aims to understand first of all the principle of self-determination in international law and afterwards analyze the Syrian Civil War from the perspective of the principle. Of course, claims of the Syrian Arabs (mostly Sunni Muslims) and Kurds for self-determination occupy a central role in these analyses because it is the beginning point of the conflict and also the key to the solution in Syria. Thus, the status of the self-determination demands for Syrian people in international law will be thoroughly analyzed in the study. One of the primary importances of the study is to research the principle of self-determination in a holistic and historical perspective and to asses the Syrian conflict from this perspective. Additionally, the unique role of the Syrian conflict in the evolution of the self-determination principle and possible future trends in international law will be evaluated. For this purpose, in Chapter two self-determination principle will be explained in a historical perspective, in Chapter three the role of the Kosova Case for the self-determination principle in the light of the developments after Cold War, which is the latest turning point of the right before Syria conflict, will be discussed and finally in Chapter four Syria conflict will be analysed in all aspects and possible solutions will be expressed in accordance with international law.
2. THE PRINCIPLE OF SELF-DETERMINATION
In this chapter, the historical background, the recent classification in the literature and problems in international law regarding the self-determination principle will be explained. These explanations will help us to better appreciate the unique self-determination cases (Kosovo, Georgia and Syria) analysed in the following chapters and will bring an informative insight to our assessments.
2.1. The emergence of Self-Determination as a Principle
The principle of self-determination emerged as a result of the ideas of nationalism and popular sovereignty created by the French Revolution, and the first applications showed themselves already right after the French Revolution. However, during these era, the principle of self-determination was often used to legitimize the occupation of France, and the referendums against France were invalidated (Uz, 2007). Nevertheless, the French Revolution succeeded in bringing the concept of self-determination into the agenda of the international community, if not a principle or right.
During the period until the First World War, the principle of self-determination did not improve regarding content or practice. When it comes to the end of the war, a self-determination wind has begun to blow almost all over the world, mostly stemming from the attitude of US President Wilson who had helped the Allies win the war and had stipulated the implementation of principle for a lasting peace. On the other side, the statements of Lenin, the founder of the communist government based on the philosophy of the fraternity and equality of peoples in Russia, had led to the maturation of the self-determination principle. Despite all these efforts and statements, the winners of the War (Great Britain, France, and Italy) had practically avoided the principle of self-determination except for some European states (Musgrave, 1997). Because, then, according to Western states, the principle of self-determination was only an argument to be used to dismantle enemy states.
As a consequence of this thinking, the principle had never been mentioned in the Covenant of the League of Nations, which was established by the victorious states to preserve the peace. On the contrary, the rules of “territorial integrity and non-interference in domestic affairs,” which conflict with the principle of self-determination, had been prioritized. A minority protection system was tried to be introduced for peoples in the will of self-determination, but it was not successful.
Just before the Second World War, Hitler had shown the right of self-determination of the German minority in Austria and Czechoslovakia as a reason for the annexation. One of the main reasons behind the Second World War was the disregard of the victorious states of the First World War towards the principle of self-determination by occupying the territories of defeated states after the war. This attitude had strengthened the nationalist movements and led to the fascist governments coming to power in the defeated states in the years following the First World War (1919-1938) (Şahin, 2000). The western states paid their mistakes at a very high price in the Second World War and decided to establish United Nations (UN) that is similar to the League of Nations but was expected tp protect world peace more effectively. The principle of self-determination was emphasized in two places in the UN Charter, which is the constitution of the UN organization established in San Francisco in 1945. Thus, for the first time, the principle of self-determination took place in an internationally binding treaty.
2.2. Transformation to a Legal Right
After the Second World War, weakened colonial empires, especially Britain, began to dissolve. Besides the newly independent states and the USSR, the maturation of self-determination principle with the help of the UN and its absorption by the colonial peoples had made a great contribution to the dissolution process (Pomerance, 1982). Although the United Nations Charter defines self-determination as merely a “desirable” principle, United Nations resolutions have elevated self-determination to an international legal right. In 1952, the United Nations General Assembly passed Resolution 637, which states in its preamble that self-determination is a “right. The UN General Assembly resolutions 1514 (Declaration on Colonial Independence) and 1541, which were accepted successively in 1960, recognized the right of self-determination of colonial peoples by the international community and brought various obligations to liberate the peoples under the rule of colonial governments. The Resolution 1514 declares that:
All people have the right to self-determination; by that right, they freely determine their political status and freely pursue their economic, social and cultural development.
In 1966, The UN’s Twin Covenants on human rights (International covenant on civil and political rights – ICCPR and International covenant on economic, social and cultural rights – ICESCR) clarified the relationship of self-determination with human rights and brought the internal dimension of self-determination to the focus of international community (Cassese, 1995). In the first article of both covenants, self-determination is conceptualized as follows:
All peoples have the right of self-determination. By that right, they freely determine their political status and freely pursue their economic, social and cultural development. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its means of subsistence.
United Nations General Assembly Resolution 2625, adopted in 1970, gave more importance to the right of internal self-determination. In this Resolution, the views of the western states have been of great importance because the western states had lost most of their colonies in the process until the 1970s and they wanted to expand the effect of self-determination towards the Eastern Bloc. Therefore, they made a particular emphasis in the Resolution 2625 to the representative government in implementing the right of self-determination:
Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, entirely or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.
With the Helsinki Final Act signed in 1975, these politics of the western states gave fruit. For the first time, the internal dimension of the self-determination principle has taken place in an international agreement. Another important aspect of the Helsinki Final Act is that the right to self-determination is given not only to colonial peoples but also to all peoples. Principle VIII states:
Under the principles of equal rights and self-determination of peoples, all peoples have the right, in full freedom, to determine, when as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development.
With those developments, the principle of self-determination reached maturation in international law. In 1975 there was almost no colony left on the world which indicated that the right of self-determination would now be the case for sovereign states. As predicted, just after the Helsinki Final Act, the nationalist movements began to rise in the Eastern Bloc countries, and the path opened for the dissolution in 1991 (Shah, 2007).
2.3. Types of Self-Determination
The legal texts accepted by the United Nations concerning the right of self-determination did not preserve self-determination in any division or separation. In particular, there is no definition of external and internal. The concept of self-determination mentioned in the international law documents regarded as related with external self-determination. Therefore, the concept of internal self-determination is not part of the traditional literature on self-determination (Frankel, 1992). However, the Human Rights Committee, which is established under the provisions of the International Covenant on Civil and Political Rights, emphasized the internal aspect of self-determination. Besides, western countries are keenly defending internal self-determination in international law because of its emphasis on the notion of democracy. Apart from these, many politicians, scientists and international lawyers such as Antonio Cassese, Patrick Thornbery, and Michla Pomerance have used the concept of internal self-determination to demonstrate the importance of democratic issues even after external self-determination has been achieved.
Whenever people choose one of the options of independence, free partnership, or integration, or is in an effort to get rid of foreign administration, these are often seen as an external application of self-determination (Pomerance, 1982). However, external self-determination can be interpreted in different ways according to the conditions of the states or time. In self-determination literature, based on those different interpretations, the right to external self-determination has been classified according to the different applications for the colonial peoples (e.g. Algeria, Libya, Sudan), the People under foreign invasion (e.g. Iraq’s’ invasion of Kuwait), the separation (e.g. Czechoslovakia) or unification of People (e.g. West and East Germany) or in the situation of economic exploitation (e.g. ex-colonial states).
On the other hand, the development of a democratic form of government, political participation, and democratic rights, and the free determination of the administration which the Peoples’ desire, are thought to be the practice of internal self-determination. The right to internal self-determination concerns the internal organization of states and the right of the people to choose the form of government without any external pressure. Hannum claims that the internal aspect of self-determination is the democracy (Hannum, as cited in Vezbergaite, 2015), meaning that people have the right to the representative and democratic government. Simpson also considers that internal self-determination is alternatively called democratic self-determination (Simpson, as cited in Vezbergaite, 2015). Contrary to the external self-determination, which ends according to the international law when the colonial or occupied Peoples gained their independence, internal self-determination is a never-ending right, which can not be lifted or ignored once it has been applied (Pomerance, 1982). The most crucial question regarding internal self-determination is who can use it. According to the applications in recent history, the people of sovereign states (e.g., people of Haiti and Burma) and racial groups (e.g., people of South Africa against apartheid) are mostly accepted as the subjects of the right to internal self-determination (Cassese, 1995).
2.4. Problems in International Law
Although different groups of people in the twentieth century have justified their claims for nationhood based on the right to self-determination and as a primary document for the Right, the UN Charter is in force for more than half a century, debates and uncertainties around the principle of self-determination increasingly continue to prevail. On the other hand self-determination demands are on the rise. Despite all the general principles provided by the United Nations Charter and General Assembly resolutions, International Court of Justice opinions, and journal publications, there are no clear international legal standards for those demands because of the problematic areas around this extremely subjective right (Frankel, 1992).
Defining the “Self”
Many international actors interested in the subject of self-determination agree that the right to self-determination belongs to “peoples.” Wilson’s Fourteen Points, the Atlantic Charter, and the UN Charter showed “peoples” as the subject of the right. On the other hand, some of the international actors have regarded “nations” as the main subjects of international law and the principle of self-determination. Lenin had also expressed that “nations” and “minorities” are the subject of the self-determination principle. In some international treaties, “peoples and nations” are mentioned together (Gruda, 2005). All this chaos around the terminology of “self” has caused a complete confusion in the international community for deciding who can use the right to self-determination.
As stated in the UN Charter, Twin Conventions, and UN resolutions, the subject of the right to self-determination is all “peoples” (Salako, 2013). However, the problem arises in interpreting the concept of the “people.” In the literature, there exist two interpretations, narrow and broad. An overly broad interpretation of “people” could cause many nations to fear the right of self-determination, while an overly narrow interpretation could deny many legitimate groups the right to determine their destiny (Frankel, 1992). Until now, the general tendency of the international community has been to narrow the definition of the “peoples” in order to limit the number of units that have the right to self-determination. When we look at international law documents and states’ practices, it is observed that the term “people” is understood to include all people within the country. In the process of decolonization, following this understanding, self-determination has been given to the people of the country as a whole in the newly independent states (Uz, 2007).
On the other hand, groups those are in the claim of self-determination interpreting the term “people” as broadly as possible and including all kind of “minorities,” even with smallest differences, in the scope of the principle in order to benefit from the assurances in the international law. However, the fact is that “minorities” right to self-determination have never expressed, even not have mentioned, in any international law document (Gündüz, 1994). Emerson illustrates the problem when he writes, “It has so far proved impossible to determine what category of peoples, if any, will next be entitled to call upon the right of self-determination. Thus, despite the inherent difficulties, it is essential in our post-colonial phase to establish a test to determine what constitutes a “people” (Emerson, as cited in Frankel, 1992).
The Nature of the Principle: Jus Cogens?
For a long time, the nature of the principle of self-determination is under discussion. The doctrine is now generally understood as a binding principle of international law, drawing its normative force primarily from treaties but also from important sources of customary law (Fox, 1995). Many proclaim that it is a “jus cogens” right because it is an irrefutable right given to the people by international law. On the one side, the increased importance of the Vienna Convention in legal thought, and on the other side the fact that the self-determination principle takes place in the most important contemporary international documents support the idea that the normative character of the self-determination principle is “jus cogens.” In the light of the UN resolutions, we can say that the principle of self-determination has become a “jus cogens” right at least for the people living in the colonial lands (Gardam, 1993).
On the other hand, when we look at the practices of the self-determination, it will be seen that it is not only an exclusive right for the colonial peoples. It has also become a right to self-determination for such communities where severe human rights violations are being conducted. If self-determination is handled with its internal dimension, then it has become a right for the entire population of the world. However, while some critical international jurists object even to the idea that self-determination is a legal right, it is not right to assert the principle in a particular nature of “jus cogens.” The most important argument that supports this view is that if the principle of self-determination is a “jus cogens” right, then it should be compulsory to disallow the provisions of the agreements conflicting with it. Until today no contract has been declared null and void by the ICJ because of conflict with the principle of self-determination (Cassese, 1995).
Another critical discussion around the right to self-determination is the right to secede. The term “secession” has been defined by the Supreme Court of Canada in Re Secession of Quebec ((1998) 2 SCR 217) as follows: “Secession is the effect of a group or section of a State to withdraw itself from the political and constitutional authority of that State, with a view to achieving statehood for a new territorial unit on the international plane. In a federal State, secession typically takes the form of a territorial unit seeking to withdraw from the federation.” Despite this definition, it is still uncertain whether the right to self-determination and the right to secede are two sides of a coin or different principles. From the beginning, it has always been debated whether the right to self-determination includes the right to secession (Uz, 2007).
According to international law, the right to self-determination is only valid within the limits of the uti possidetis
Any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country is incompatible with the purposes and the principles of the Charter of the United Nations.
The proponents of the right to secede have likened the right to self-determination without secession to democracy without elections. According to them, the right to self-determination, including the right to secession, must be given especially for people facing discrimination and oppression. They argue that the right to secession is a type of self-determination in order to protect people against a repressive regime (Heraclides, 1991). Those who advocate the right to secession are opposed to territorial integrity and national unity as an absolute value. However, even those have accepted the right to secede only in certain conditions and compelling reasons. According to them, if people’s lives or cultural autonomy are in danger, or if the public feels that they have been exploited in economic poverty, there is a justifiable reason to secede. Consistent with this idea, Article 7 of the “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (Resolution 2625)” states that:
Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, wholly or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.
Thus, at least it is certain that no one is supporting the right to secede from a state which represents the entire population and has functioning democratic governance (Frankel, 1992).
Minorities, Human Rights, and Intervention
Before and during the WW2, Hitler had practically invaded Austria and Czechoslovakia with the justification of protecting the rights of the German minorities in those countries. Thus, minority rights gained a bad reputation in the international community and as a result, minority rights after the Second World War were not included in the UN Charter (Sahin, 2000). After 1945, the subject of minorities came onto the world agenda again with the end of the Cold War. One of the most significant problems that emerged at the end of the Cold War was the exacerbation of ethnic problems within the states. To solve these problems, it has been suggested that minority rights such as equality, cultural, religious, linguistic freedom and full incorporation to the political and economic life have to be established within the states (Paust, 2013). Thus, it has been envisaged to avoid extremes that could be against the benefits of minorities or states such as division of the state or assimilation of the minorities. However, in countries where democracy is not so advanced, the difficulty of substituting minority rights makes it difficult to resolve the problem always in peaceful ways.
As witnessed many times in history, when the government collapses in a country,
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are mainly within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII (UN Charter Article 2 (7)).
Nevertheless, international principles and their associated practices are differentiated because of the ethnic-minority problems that have arisen since the end of the Cold War. Establishment of no-fly zones in northern Iraq, NATO’s Bosnia and Kosovo interventions were the indications of how far the international community has moved away from the second view after the collapse of East Block.
On the other hand, today, substantial violations of human rights can be done not only against minorities but also against the whole or a majority of the people living in a country. In Article 1 of the UN Charter, one of the UN’s aims is stated as to solve international humanitarian problems and to promote respect for human rights. The UN Charter’s efforts to raise respect for human rights have been enhanced by the declaration of the Universal Declaration of Human Rights in 1948 and the principles expressed in this document have been elaborated in detail with Twin Covenants:
“the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms.”
International human rights law was built on these three international documents (Vogel, 2006).
Recently, the framework of international human rights law is mainly developed by focusing on individual rights, especially on personal and political individual rights. The internal dimension of self-determination also concerns political rights, such as political participation, fair elections, and a democratic government. The connection of self-determination with the protection of individual rights has allowed it to be considered within the framework of human rights because the intention of internal self-determination has always been to protect and strengthen the groups and communities against all kinds of oppression. Similarly, human rights law aims to protect individuals from oppression. The only difference is that the human rights law aims to protect all rights, not just self-determination. Thus, one may assert that achievement of self-determination (primarily internal) is a crucial prerequisite to a peoples’ enjoyment of all other human rights (Fox, 1995).
A democratic process is required to utilize the right to self-determination. The existing content of human rights law, which also contains political rights, has formed the internal dimension of self-determination, in short democracy, because democracy is indistinguishable from human rights and fundamental freedoms. Therefore, as internal self-determination gains value for the international community, it will legitimate military intervention in places subject to massive human rights violations. In this context, the UN Security Council can quickly implement the seventh chapter of the UN Charter if the international community wants to intervene. Accordingly, some authors advocate the need for continuous air strikes to overthrow the governments of the repressive states as we have seen in the Libya case. According to these authors, the international community should be prepared to use force when there is a justifiable reason in international humanitarian law and when all kinds of peaceful means are consumed (Şahin, 2000).
3. POST COLD WAR DEVELOPMENTS: THE CASE OF KOSOVO
Although the principle of self-determination threatens the territorial integrity of states since its entry into the international community’s agenda, this has not been endorsed by any international treaty (Cassese, 1995). The International Court of Justice, which is the judicial body of the UN, has always taken decisions -with a few exceptions- has reported opinions on the grounds of respect for the territorial integrity of states in self-determination cases. The end of the Cold War in 1991 gave a strong momentum to the principle of self-determination that the “uti possidetis juris” principle was unable to keep some of the states of Eastern Bloc together (Halperin, Scheffer, Small, 1992). In particular, the Union of Soviet Socialist Republics (USSR) and Socialist Federal Republic of Yugoslavia (SFRY), which had a multinational structure, settled in the center of self-determination demands by entering a rapid fragmentation process and became a turning point similar to the decolonization process in terms of the self-determination principle. Until that time the right to self-determination had only applied to colonial states. For the first time, with the dissolution processes of USSR and SFRY, the right to self-determination started to be applied in the federation type sovereign states as it was demanded by the peoples who are non-colonial, not in alien invasion and not in racial oppression. Although the Western world didn’t welcome these demands initially, after realizing that they are no longer reversible, they argued that secessions could only be through agreement (Musgrave, 1997). Actually, the provisions of the SFRY’s Constitution were also suggesting that secession is possible if the federal government and all of the republics and provinces agree to it (Iglar, 1992). The Badinter Commission, which was appointed by the European Economic Community in 1991 to solve the separatist problems in Yugoslavia, stipulated the referendum in case of no agreement. As applied in decolonization process, the internal borders of the old state were accepted as the national borders of the new states. It has been accepted by the international community that the “uti possidetis juris” principle should be valid on these borders. Thus, international community desired to make use of the existing international law formed around the principle of self-determination for the new situation (Şahin, 2000). Nevertheless, there had been very bitter events during the dissoulution process of the USSR and SFRY and the developing events had led the international community to make new decisions. In particular, Kosovo’s independence process brought a new dimension to the international law by removing the principle of self-determination from its usual framework.
Figure-1: The Former Yugoslavia and the Republics
When bloody incidents began in Kosovo, the UN Security Council and the EU began implementing various sanctions on the Federal Republic of Yugoslavia (FRY-constructed by the Republics of Serbia and Montenegro), including Kosovo, from 1998 onwards. FRY, fearing air strikes, signed an agreement with the OSCE on 16 October 1998. Accordingly, FRY would only have police troops in Kosovo, would not use heavy weapons, and would allow unarmed OSCE officials to observe. Despite the OSCE observers being settled and other measures
In October 2005, the UN
Kosovo’s step-by-step progress to independence, as an autonomous territory within the borders of the Republic of Serbia in 2008, was in fact contrary to existing international law in many respects (Türbedar, 2008) Besides, Kosovo didn’t have the right to secede as an autonomous provision of SFRY according to the Constitution of SFRY, dated 1974 which granted the right to secede only to the six founding nations of SFRY (Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia) (Iglar, 1992). However, serious violations of human rights, including political and civil rights, and the lack of internal self-determination were seen as sufficient reasons for Kosovo’s secession from Serbia. This new interpretation of international law has, since then, mobilized many peoples who are already in demand of self-determination. The main argument here is that whether Kosovo is a valid example for these peoples or not. The common belief is that Kosovo is not a precedent for every self-determination claim (Borgen, 2008). But, as in the case of Kosovo, if a ruling state (e.g. Federal Republic of Yugoslavia), contrary to the UN resolution 2625, ignores the internal self-determination of a minority living in a certain region, if it exposes them to intense human rights violations, and if it prevents the use of domestic legal mechanisms to solve these problems; the right of the group to demand self-determination has been recognized along with Kosovo’s independence (Borgen, 2008).
With the independence of Kosovo, we can say that Pandora’s Box has opened in terms of self-determination. Due to the recognition of Kosovo’s independence by the international community, there has been a collision between the principle of uti possidetis
4. A NEW PHASE: THE CASE OF SYRIA
After the collapse of the Eastern Bloc, conflicts occurring that relate to the right to self-determination have been problematically settled according to international law; examples include the Kosovo and Georgia crises. These incidents have demonstrated international law’s insufficiency, and how in the post-decolonization process it has the potential to evolve in unpredictable directions due to variances in state practices. Nonetheless, since these crises were still within the scope of external self-determination, the international community was able to benefit from international law established during decolonization that was specifically designed to address such issues. Since 2010, however, the Arab Spring has emerged in the former colonial countries of the Middle East and North Africa (MENA) region to demand democracy, equality and liberty, evidencing an internal dimension to the right to self-determination.
MENA countries gained their right to external self-determination only in the past half century, and obviously this has not been sufficient on its own. Contrary to external self-determination, which according to international law ends when colonial or occupied peoples gain independence, internal self-determination is never-ending. It cannot be lifted or ignored once it has been recognized (Pomerance, 1982). During the Arab Spring, an ongoing ignorance of the right to internal self-determination caused democratic protests to transform into armed struggles against oppressive regimes in countries such as Libya and Syria. Although similar demands for internal self-determination were made in the 1956 Hungarian and 1968 Czechoslovakian uprisings (which are considered sources of inspiration for the Arab Spring), at that time there was no provision in international law that granted this right (Salako, 2013). In 1970 the UN passed Resolution 2625, which fills this gap in international law and codifies the right to internal self-determination. Nevertheless, since 1970 there has been no armed struggle like that of Syria, where there has been an attempt to change state administration based on the right to internal self-determination but without a demand for the opportunity to secede. As a general rule, international law follows its application in the international community (Shah, 2007). The lack of precedent in existing international law does not allow crises like Libya and Syria to be resolved by the international community. The Syrian civil war has continued for the past seven years, and the demand for self-determination by the Syrian people has yet to be met. Thus, the Syrian conflict has the potential to force the international understanding of the right to self-determination in a new direction from that which was established until now.
4.1. Syrian Civil War
Syria was founded by French mandate after World War I, and became independent in April of 1946. Between 1958 and 1961, the country entered into a union with Egypt to form the United Arab Republic, with Nasser as President and Cairo as the capital. This union was terminated soon thereafter, by military coup. Hafez al-Assad came to power in 1971, and after an attempt to assassinate him in 1979, he ruthlessly crushed any opposition and strengthened his dictatorship. Bashar al-Assad took power after his father’s death in 2000. At that time, it was hoped that he would increase democracy and improve human rights, but nothing changed. Widespread demonstrations during the Arab Spring emboldened the Syrian opposition to begin their own internal protests against the al-Assad dictatorship. These protests eventually led to armed violence, to which the Syrian government responded with heavy-handed tactics in an effort to suppress the reform-based uprising. The government’s violent crackdown on insurgents forced the opposition to become more radical, and riots broke out throughout the country. Rebels split into a myriad of militarized opposition groups and violence between them and Syrian forces increased dramatically (Wallace, McCarthy, & Reeves, 2017).
A “civil war” is defined as “a violent struggle over political control of a state occurring entirely within the geographical boundaries of that state” (McNemar, as cited in Salako, 2013, p. 130). Since March 2011, Syrian government forces backed by Russia, Iran, and Hezbollah have been engaged in an ongoing civil war with a number of armed groups. In November 2012, as the civil war intensified, an umbrella organization of opposition groups known as the National Coalition for Syrian Revolutionary and Opposition Forces (Syrian Opposition Coalition, or SOC) was recognised as “the legitimate representatives of the Syrian people” by member states of the Gulf Cooperation Council, as well as France, Turkey, the United Kingdom, Arab League, and European Union. The Free Syrian Army (FSA) was established as the military wing of the SOC. Kurds, together with other Arab groups in northern Syria, had established the military organization of Syrian Democratic Forces backed by the United States.
However, the United States also declared the Al-
Figure 2: Syria as of 2 September 2018
4.2. Syrian Peoples Right to Self-determination
The civil war has been devastating for the Syrian people. Approximately half the Syrian population has been forced to leave their homes, including 5.6 million refugees who have fled to other countries. Inside the nation’s borders, 13 million people are in need (UNHCR, September 2018). Furthermore, the Syrian demand for internal self-determination has gone unrealized, and hope is disappearing. Why did this happen? Why did the international community lack the enthusiasm it showed for Libya and failed to support the people of Syria? Do the Syrian people not have the right to internal self-determination, according to international law? The following section explores answers to these questions through discussions of Syrian Sunni Muslims and Kurds; these two groups have been analysed
In 2011, protests against the Syrian regime began mostly among Sunni Muslims who, from the beginning, have led the opposition. Sunni Muslims’ struggle against the Al-Assad dynasty has been ongoing since the 1980s. The regime mostly stems from a Shia Alawite minority that has regularly oppressed Sunni Muslims, who comprise the majority (70%). The regime has discriminated against the Sunnis, committed serious political and civil human rights violations, and used armed force at every opportunity against the civilian population (Black, 2010). According to international law (see Section 2, above), the right to self-determination applies when a government does not represent the entirety of a nation’s population, discriminates against a particular group, persistently denies the internal right to self-determination, violates basic human rights, and suppresses a people by any means including force, and all peaceful and diplomatic means of resolution have been exhausted.
In Syria, it is obvious that these criteria have long been met. The United Nations General Assembly Resolutions and United Nations Human Rights Council have several times described systematic and ongoing basic human rights violations, especially in terms of armed attacks by the Syrian regime against its own population, particularly civilians (Gökçe, 2013). Such attacks on civilians not only violate human rights
However, the international community has yet to intercede in the Syrian civil war and has done nothing to protect the right to internal self-determination of the Syrian people. Moreover, despite similarly systematic and widespread armed attacks on demonstrators and other civilians in Syria, the UN Security Council has not authorized member states to use force to protect civilians as it did in both Libya and Kosovo (Paust, 2013). The differences in response stem from some unique aspects of the Syrian case with regards to the internal self-determination and human rights violations that could be used to justify intervention. First of all, the very nature of the Syrian conflict has shifted from its original underpinnings, when protesters took to the streets in March 2011 and called for democracy and reform. At that time, some members of the international community (e.g., the EU, Turkey, and the Gulf Cooperation Council) formally recognized the NCS as “a legitimate representative of the Syrians seeking peaceful democratic change.” Recognition of the NCS as a legitimate representative of the Syrian people could be seen as also legitimizing their desire for self-determination and struggle with the Syrian government (Gökçe, 2013). However, at that time, large groups of Islamist and jihadist actors entered the struggle who did not consider democracy to be a legitimate form of governance and worked to undermine its effective realisation in any form. The undemocratic nature of the opposition groups (with some being declared terrorist organizations, such as ISIS and Al-Nusra) negatively impacted indigenous Syrian efforts at self-determination (Conduit & Rich, 2016). The international community was reluctant to replace one undemocratic regime with another (especially one that might pose a threat to international peace and security), an action that would actually go against the concept of internal self-determination, and thus, international law.
A key reason why the international community should intervene and ensure a Syrian right to self-determination is the serious violations of their human rights they continue to suffer. One of the essential features of the Syrian civil war is the endemic disregard for human rights on both sides of the conflict. The international community initially focused on the gravity and scale of the crimes (including chemical weapons attacks) committed by the Assad regime; however, it has become increasingly evident that anti-government forces are similarly guilty of large-scale atrocities (Ruys & Tom, 2014). The August 2013 report of the Independent International Commission of Inquiry on the Syrian Arab Republic stated that “government forces have committed great violations of human rights and the war crimes of torture, hostage-taking, murder, execution without due process, rape, attacking protected objects and pillage. But as well anti-government armed groups have committed war crimes, including murder, execution without due process, torture, hostage-taking and attacking protected objects. They have besieged and indiscriminately shelled civilian neighbourhoods.” Thus, “humanitarian intervention” is not as clear-cut as in Kosovo because the Assad regime, while arguably guilty of large-scale war crimes and massive human rights violations, does not appear to have engaged in an actual policy of ethnic cleansing or genocide, and anti-government forces are violating human rights on a similar scale (Ruys & Tom, 2014).
The Kurdish demand for self-determination is discussed separately in this study because
According to Cassese (1995), the same declaration gives such people the right to secede when the “the central authorities of a sovereign State persistently refuse to grant participatory rights to a religious or racial group, grossly and systematically trample upon their fundamental rights, and deny the possibility of reaching a peaceful settlement within the framework of State structure.” The Canadian Supreme Court, in Re Secession of Quebec, asserted that in cases where the right of internal self-determination (in this case, in the form of participation in the political process) is denied, a minority group then has the right to external self-determination (i.e., secession). This implies that where the processes for achieving internal self-determination have failed, a secondary right is created to seek self-determination by other
Even though Syrian Sunnis and Kurds have similar justifications for self-determination according to international law, Kurds have received more support by the international community. Since 1970, the right to self-determination of religious groups (e.g., Syrian Sunnis) has not matured into rule. However, the provision granting internal self-determination to racial groups (e.g., Syrian Kurds) persecuted by a central government has become part of international law (Cassese, 1995). Furthermore, the Kurdish ability to remain in harmony with the international community and avoid terrorist actions and human rights violations further supports their demands for political legitimacy, according to international law. Nevertheless, the right to self-determination has its limits, the most important of which is that independence must not create problems for the international community (Frankel, 1992). Therefore, it is unlikely that international support without the agreement of the other key actors in the region will be sufficient to ensure the Kurds external self-determination (i.e., secession and independence). Yet the international community is likely to support the Kurdish desire for internal self-determination through the establishment of an autonomous administration in their region and participation in the central government. If the Syrian regime can create these conditions for internal self-determination via a new constitution, establish appropriate bodies for the constitution’s application, form a government representing all its people, and avoid further human rights violations, Syria could eventually take its place in the international community as a single state.
4.3. A New Phase of the Principle of Self-determination
The general situation in Libya and international recognition of the NCS as a legitimate representative of the Syrian people appear, at first sight, to be out of line with previous practices and international law, since these are not cases of external self-determination (Gökçe, 2013). What is interesting about both Syria and Libya is that Western states, which generally have opposed the recognition of national liberation movements as legitimate representatives of the people, have now adopted the term. During the decolonisation period, Western states often abstained or voted against UN GA resolutions (e.g., Res 35/227 dealing with Namibia), recognising national liberation movements as such. It is ironic that most of the West is now taking the opposite stance with regards to the Arab Spring. The recognition of a group struggling for their right to self-determination against an incumbent regime to be the sole legitimate representative of its people leads to the associated recognition of the right to self-determination being legal, lawful, and just, even though that group does not struggle against colonial domination, alien occupation, or an inherently racist regime (Gökçe, 2013). This shift in the West’s political stance stems from a broadening of the general interpretation of the right to self-determination, which in turn signifies a new phase in the evolution of the principle. The Great Middle East Project, which aims to redesign the internal and external formations of former colonies in the MENA region, is one indicator of this significant shift, and underscores its target area. External self-determination of Eritrea and South Sudan and the internal self-determination of Libya and Syria can be seen as applications of this new, post-colonial sense of self-determination.
Another aspect of this new phase is the intervention of third states into such conflicts. According to international law, third states should refrain from interference in civil strife and are prohibited from providing arms to either side (Paust, 2013; Ruys & Tom, 2014). However, in Syria, both sides have received direct and indirect support from third states; this is the main reason for the war’s long duration (Burke-White, 2014). These third states predicate their actions on the customary international law of Res. 2625: “the right of liberation movements representing peoples struggling for self-determination to seek and receive support and assistance.” By recognizing NCS as a legitimate representative of the Syrian people, third states claim they have the right to support opposition forces with lethal aid. However, according to Res. 2625, only national liberation movements fighting against colonial domination, alien occupation, or racist regimes can be recognized as legitimate representatives. In this new post-colonial time, third states are taking it upon themselves to extend the rule to the opposition groups fighting for internal self-determination against the government of an independent state (Schmitt, 2013).
The principle of self-determination has come a long way since its introduction as an international law rule in the 19th century. De-colonization and the end of Cold War were the most remarkable milestones
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- Paul Weber is a non-resident research fellow at Beyond the Horizon ISSG. ↑